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Credentialed Mariner with a Non-Negative Test Result – Part 3

22 Feb 2016

... United States Coase Guard (USCG) Regulated Drug & Alcohol Testing .. What Happens to a Mariner with a Non-Negative Test, Part 3 ...Consequences for a Credentialed Mariner with a Non-Negative Test Result – Part 3

Part 1    Part 2    Part 3   Part 4

This article will explore the consequences of the first option that is available to the credentialed mariner.  The consequences remain the same and will range at a minimum removal from safety-sensitive employment to loss of the credential.  Not a pleasant prospect that the mariner will face besides not having the ability to earn money in their chosen profession.

Option 1:  The mariner elects to contest the test result.  He hires an attorney at his expense to advice and to assist in the hearing before the Administrative Law Judge (ALJ).

The Mariner notifies the Investigating Officer (IO) of intent to contest the test result and argue the case in front of an ALJ. The IO documents this request along with the name of the attorney who will be representing the mariner.  The IO will notify the area ALJ to have the case put on the hearing calendar.  The IO will then review all the documentation to ensure that all is in order and will consult with the Suspension and Revocation National Center of Expertise (S&R NCOE) to discuss the case with the attorneys in that office. 

The S&R NCOE requests copies of all the documentation to review.  At the same time, the Medical Review Officer (MRO) and the collection facility are contacted to notify them of the pending hearing.  The Consortium/Third Party Administrator (C/TPA) is also notified that this case will be going to a hearing. Subpoenas are issued by the Coast Guard IO to all parties that are expected to testify on behalf of the Coast Guard. 

The attorney representing the defendant is preparing a case to prove that the mariner is not guilty of the charge.  He requests copies of all the documentation that the Coast Guard has in their possession.  The IO makes copies of the documentation with this documentation being given to the attorney. This is known as Discovery with both sides exchanging information so there are no surprises - last minute witnesses or pieces of evidence.

The Coast Guard will also request all discoverable evidence from the attorney to which the attorney complies with this request. This includes the litigation package received from the laboratory if requested by the defense.

The attorney is most likely looking for the laboratory litigation package but the Coast Guard has not requested that package.  It will be up to the attorney to order that package if it is felt necessary to the defense. These packages are expensive and the Coast Guard is no longer requesting these but is depending upon the testimony of the laboratory Certifying Scientist (CS) and the MRO help prove the case against the mariner.

The attorney subpoenas the laboratory requesting an aliquot of the specimen for DNA analysis and for a repeat analysis.  The laboratory in a written reply to the request informs that attorney that the request cannot be honored for the following reasons:

  1. The specimen in question was collected using a Federal Chain of Custody Form (CCF) in accordance with Federal regulations, therefor the specimen is controlled by DOT and DOT regulations. 
  2. The specimen cannot be subdivided for a DNA analysis as DNA analysis is not permissible in accordance with the 49 CFR part 40.13 and 40.153. 
  3. A test of Bottle B or a retest of Bottle A cannot be conducted as only the MRO can order that testing and it has to be within 72 hours of the report that was given to the tested individual in accordance with the procedures given 49 CFR Part 40, Subpart H – Split Specimen Tests.

The attorney gets this report, researches and determines that the letter and rationale listed is indeed accurate.  He is still left with the burden of proving that his client’s specimen is not his but is somebody else’s specimen.

He makes a decision after consulting with his client to make a request to get a litigation package form the laboratory.  He outlines the pitfalls that it made not help the case but can help if the laboratory litigation package exposes a laboratory error.  That will entail more money and the use of a forensic toxicologist to consult and review the litigation package.  The client asks how much will all of that cost.  The attorney replies that the litigation package is approximately $500 to $1,000.  The forensic toxicologist has a fee of $1500 per day plus expenses.  The attorney further advises that the litigation package and the forensic toxicologist will not guarantee success in this case.  The mariner and the attorney discuss the issues some more with the mariner denying that he adulterated the specimen and thinks that the laboratory or the collection site got the specimen mixed up with another specimen. At the end the mariner reluctantly agrees to the additional charges.

The attorney reviews all the requested documentation including the Federal CCF with the final test result on it along with the collector qualifications and the MRO qualifications.  After a review of the litigation package and in consultation with the forensic toxicologist, it is determined that there are no “fatal” flaws with the test result.  There are a couple of minor flaws but no mix up of numbers or specimen mislabeling.

The attorney examines areas where the test result could possibly be overturned.  He examines the random section process and notification to the employee of the requirement to be tested on a random basis.  The mariner admits that he had no prior knowledge of having to take a random drug test.  The attorney examines the random selection process and finds that it was a random number generator as allowed by Coast Guard regulations.  The hearing date is drawing closer.

Both the IO and the attorney representing the mariner do last minute examination of their cases and decide that to go ahead with the case.

It should be noted that this is an administrative hearing only based upon the regulations or Administrative Law.  This is not a civil or criminal trial.  There are similarities with a ALJ Hearing as there is for a criminal or civil trial.  The primary difference is that any Constitutional issues that may be brought up are outside of the jurisdiction of an ALJ Hearing.  In the drug test cases there are normally no Constitutional issues that will be brought up.  If Constitutional law areas are brought up the defendant or the defendant’s attorney, those arguments will not be considered and they will be requested to take the case to Federal Court where issues involving Constitutional can be heard.

The case begins with testimony being presented by the Coast Guard.  The collector will testify along with the laboratory Certifying Scientist.  The MRO will also testify.  All parties will give testimony attesting to their credential and qualifications.  The Federal CCF Copies 1 and 2 will be admitted into evidence along with the MRO verified report of the laboratory analysis. The defense will have an opportunity to a cross examination of the Coast Guard witnesses and challenge the testimony as presented.

The defense is challenging that the specimen analysis was not the donor specimen.  The Copy 2 of the CCF is presented with the donor’s signature on it certifying that he did give the specimen and sis not adulterate or substitute the specimen.  The exact wording taken from Copy 2, Step 5, of the CCF is:

“I certify that I provided my urine specimen to the collector, that I have not adulterated it in any manner; each specimen bottle was sealed with a tamper-evident seal in my presence and that the information provided on this form and on the label affixed to each specimen bottle is correct.”

This is presented to the Defense attorney and will be challenged.  The attorney will go into the donor qualifications and challenge the collector on each step. The important step being the placement of the bottle labels on the specimen bottles and when did that occur. He will also challenge when did the Donor place their initials on the bottle labels. 

NOTE:  If the labels were initialed while still affixed to the Federal CCF, an impression will remain and will be visible.  That has the potential to have the defense win the because of procedural error.  If this happens, then the collection site has consequences and can face a Public Interest Exclusion (PIE) charge.

Pictures of the specimen bottles with their labels are presented as evidence with the donor initials visible.  All of the CCF numbers match between the labels and the CCF.

In this case, the labels were signed as required and the challenge by the defense attorney is for naught. 

Both the MRO and the Laboratory CS present their testimony which goes unchallenged.

The Defense is asked if they have any witnesses to present.  The defense presents the consulting Forensic Toxicologist as a witness to testify about reliability and quality control of the laboratory analytical procedures in an attempt to discredit the report.  The Forensic Toxicologist is requested to state for the record his credentials and qualifications.  The testimony is given by the forensic toxicologist and challenged by the Coast Guard and the CS.  The testimony given by the Coast Guard and the CS is that all procedures were performed in accordance with the Standard Operating Procedures (SOP) which was approved by the National Laboratory Certification Program (NLCP).

At this point both sides rest their cases and wait for the decision of the ALJ.

The decision does not take long to decide.  The ALJ rules in favor of the Coast Guard and the mariner is informed that his credential is permanently revoked as the mariner did not prove that his case to the satisfaction of the ALJ.

This decision can be appealed.  The first appeal step is to the Commandant of the Coast Guard.  The Commandant can uphold the decision or remand it for a new hearing.  That decision called Commandant’s Appeal on Decision (CDOA) can be appealed if the defendant does not like the decision of the Commandant.  The next appeal step is to present the case to the National Transportation Board (NTSB) ALJ’s for review. The case can be upheld or remanded for a new review and hearing by Coast Guard.  That decision can also be appealed.  The case can be appealed to a Federal Court.

SIDE NOTES:  I have not seen a case appealed beyond the CDOA stage.  The ALJ’s at NTSB hearing the cases against licensed FAA personnel.

Readers should note that if the mariner desires to work in the maritime industry as a non-credentialed mariner, the SAP requirement needs to be successfully completed and the requirement for the MRO letter to be obtained still remains. If the mariner wants to work in one of the other regulated transportation industries, the SAP requirements are required to be successfully completed.

The next article will explore the other option with the Settlement Agreement. 

By Robert C. Schoening